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Petitioner: KHAN MUHAMMAD AND 3 OTHERS VS Respondent: GHULAM RASOOL AND 5 OTHERS
Court Name: Lahore High Court Judge(s): Muhammad Munir Title: KHAN MUHAMMAD AND 3 OTHERS vs GHULAM RASOOL AND 5 OTHERS Case No.: Regular Second Appeal No, 100 of 1986 Date of Judgment:1986-12-01 Reported As: PLD 1987 Lahore 71 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' Muhammad Rafiq and others, sold agricultural land measuring 19 Kanals 12 Marlas situated in village (,tabula Tehsil Pakpattan, District Sahiwal, to Khan Muhammad, Muhammad Din and Muhammad Ibrahim, defendants/appellants for ostensible price of Rs, 22,050 and mutation of sale was attested on 29-4-1974. On 24-4-1975, Nazar Din deceased, father of Ghulam Rasool and 4 others respondents filed suit for possession by pre-emption against Khan Muhammad and others, vendees, in the Court of Civil Judge, Pakpattan, claiming superior right on the basis of being real uncle of the vendors and co-sharer in the estate as well. It was also averred in the plaint that a sum of Rs, 9,800 only was bona fide fixed and actually paid as sale price of the suit land but to defeat the pre-emptive right it was fictitiously shown as Rs, 22,050 in the mutation. The suit was resisted whereon 6 issues were framed. The trial Court vide judgment and decree dated 20-7-1978 while deciding issues other than issue No, 4 against the vendees/appellants, decreed the suit subject to the payment of Rs, 22,050. Feeling aggrieved thereby, the defendants/appellants filed appeal which was entrusted to learned Additional District Judge who vide his judgment and decree dated 10.3-1980 remanded back the case to the trial Court directing that: "an issue in terms of preliminary objection No, 1 contained in the written statement be framed and the same be decided after affording opportunities to produce their respective evidence. The findings of the learned trial Judge on issues Nos. 1 to 6 are maintained for the time being. The learned trial Judge shall give fresh finding on issue No, 7 according to his findings on the issue of court-fee. It is made clear that the parties can agitate and contest issues Nos. 1 to 6 if desired in the appeal preferred after fresh decision of the suit." ' On remand, the learned trial Judge framed additional issue No, 1-A, as follows :-
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"whether the suit is undervalued for the purposes of court-fee and jurisdiction, if so, what is its correct valuation and to what effect?" ' On 17-10-1984, the learned trial Judge decided this issue against the defendants/appellants and again decreed the suit. The appeal filed by the defendants/appellants against this judgment and decree failed on 31-7-1986, hence this regular second appeal. 2. Sh. Zai-ud-Din Ahmad Qamar, the learned counsel for the appellant has challenged the findings of the Courts below on issues Nos. 1, 2, 3 and 6, which are as under :- ' Issues: "(1) Is the suit barred by time? 0. P. D. (1-A) Whether the suit is undervalued for the purposes of court-fee and jurisdiction, if so what is its correct valuation and to what effect? (2) Has the plaintiff waived hisright? 0. P. D. (3) Have the defendants incurred Rs, 10,410 on the improvements of the suit land? 0. P. D. (4) Is the plaintiff equipped with superior title to pre-emption? O. P. D. ' Challenging the findings of the Courts below on issues Nos. 1, 2 and 3, the learned counsel submitted that the same suffer from misreading and misappreciation of relevant evidence in that on 21-4-1974 not only the receipt Exh. D-1 with regard to the payment of sale price was executed by the vendors and report with regard to the transaction of sale of the suit land in favour of vendees/appellants was entered in `Roznamcha Waqiati' but also the physical possession of the suit land was delivered to them and as such, the suit which was filed on 24-4-1974 was barred by time; that in the same set of circumstances another suit filed by the same pre-emptor against Riaz Ahmad and others, pre-empting different sales made on 21- 4-1974, mutation whereof was attested on 29.4-1974, was dismissed by the trial Judge; that the evidence led on issues relating to waiver and improvements was not appreciated in its true perspective and that the reasons given by the Courts below in support of their findings on the aforesaid issues are flimsy, far-fetched and unconvincing. As far issue No, 6 relating to the superior right of Nazar Din plaintiff to pre-empt the sale attested on 29-4-1974 on the grounds of being Yakjaddi and co-owner in the estate, the learned counsel referred to the judgment of the Shariat Appellate Bench of the Supreme Court reported as Government of N.-W. F. P. v. Said Kamal Shah (1), hereinafter to be referred as "the judgment", to contend that the alleged superior right of plaintiff/preemptor has been lost and taken away through the judgment before the action initiated on the basis of sale, the subject-matter of the suit, could attain finality, the respondent/pre-emptor could not claim superior right of pre-emption and his suit merited dismissal on 31-7-1986 when the appeal was decided by the learned District Judge; that in any case, the preferential right of plaintiff having been lost and taken away pursuant to the judgment during the pendency of appeal/second appeal, the decree granted by the Trial Court on the basis of being Yakjaddi was no more sustainable.. Contrarily the learned counsel for the respondent maintained that since the pre-emptor had successfully obtained the decree for possession by pre-emption before the judgment became effective on 31-7-1986 (hereinafter called "the crucial date"), therefore, his preferential right having been merged in the decree of the Court it would henceforth be regarded as a source of right for the decree-holder, such a decree, therefore, calls for no interference on the ground that the judgment had taken away the right of the plaintiff to pre-empt the sale. 3. Since the question posed for determination before this Court relates to the assessment of legal effect of the judgment on sales, suits, appeals, second appeals, revisions and writ petitions affected/filed/pending before, on or after the crucial date and is not only of public importance but also involves interpretation of constitution and statutory law, so I requested -Pir Rafi-ud-Din Shah, Mirza Manzoor Ahmad and Mr. Riaz Anwar, the learned Senior Advocates to assist the Court as amicus curiae in resolving following questions;
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(i) Whether or not the judgment has rendered clause (iii) (d) of para. No, 25 of M. L. R. 115 and section 15 (except clause (b) fourthly relating to the right of co-sharers) of the Punjab Pre-emption Act as in operative after 31-7-1986? (ii) What is the legal status of the judgment? (iii) Whether or not the judgment is repeal/implied repeal of clause (iii) (d) of para. No, 25 of M. L. R. 115 and section 15 (except clause (h) fourthly of the Punjab Pre-emption Act within the meaning of sections 6 and 4 of General Clauses Acts and Article 264 {{FOOT NOTE}} (1) PLD 1986 SC 360 {{FOOT NOTE}} of the Constitution of Islamic Republic of Pakistan, 1973, hereinafter called as "the Constitution"? (iv) Whether or not the judgment is retrospective in effect so as to hit the sale completed before the crucial date and also of right of pre-emption claimed on the basis of para. No, 25 of clause (iii) of M. L. R. 115 and section 15 (except clause (b) fourthly) of the Punjab Pre-emption Act, although no amendment in the Pre-emption Act so as to apply the rule laid therein with retrospective effect, has been made so far? (v) What is the effect of the judgment on the continuity of the suit as a result of right having accrued earlier? (vi) What is the effect 'if the judgment on appeal filed by vendee/ defendant against the judgment and decree in favour of pre-emptor pending decision on to racial date? (vii) What is the effect of the judgment on appeal filed by the plaintiff/ pre-emptor against dismissal of his suit pending decision on the crucial date? (viii) Whether the judgment has the effect of conferring right to preempt on the basis of being `Moheet' and neighbour, if so whether the same is enforceable under the law although it has not been brought on the Punjab Pre-emption Act through proper legislation? (ix) What is the effect of the judgment on the question of limitation for filing pre-emption suit? (x) Whether the plaint of the pending suits could/can be rejected on the basis of judgment? ' Pir Rafi-ud-Din Shah, the learned counsel argued for the proposition that the judgment was retrospective in effect. He maintained that the judgment enjoys a declaratory status; that it is not repeal implied repeal of the provisions of law declared therein as repugnant to the injunction of Islam;, that the .Appellate as well as a Court exercising the revisional powers can take into consideration subsequent events including any change in the law because on filing appeal, the entire matter becomes re-opened and sub judice and has to be decided according to law prevailing at the time of appeal and that once revision petition is admitted, the proceedings subject to the scope and limitation prescribed in section 115 of the Civil Procedure Code are re- opened for examination and the new aspect of law will date back to the inception of the Punjab Pre-emption Act. Mirza Manzoor Ahmad,- the learned counsel is of the view that since no specific date on which the decision of the Court would become effective has been stated in the judgment, therefore, the provisions of law declared as repugnant to the Injunction of Islam have not become ineffective and the law remains as it was before 31-7-1986. Kanwar Akhtar Ali, the learned counsel adopted the arguments addressed by Pir Rafi-ud-Din Shah. Mr. M. Jehangir Arshad, the learned counsel for the respondents argued for the propositions that unless the Punjab Pre-emption Act is amended so as to apply the rule laid down in the judgment with retrospective effect, it will not affect the sale which was complete before the crucial date and will also not affect the rights claimed by pre-emptor on the basis of those provisions of law in pending case, inasmuch as, the judgment being a "repeal" of those provisions of law, does not affect the previous operation of any enactment or repeal or anything duly done or suffered thereunder and will also not affect any right, privilege, obligation or liability acquired, accrued or incurred under those provisions of law.
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4. For the purpose of proper appreciation of the arguments addressed at bar, the observation made by His Lordship Mr. Justice Taqi Usmani, J. In para. No, 105 of his Judgment, order of the Court, relevant provisions of the Constitution, West Pakistan General Clauses Acts, Martial Law Regulation and Punjab Pre-emption Act, may be reproduced advantageously :- {{URDU TEXT}} ORDER OF THE COURT "We while agreeing with the reasoning in the judgment of Shafi-urRehman, J., that the Federal Shariat Court had the jurisdiction to entertain, adjudicate and decide the petitions out of which the3e appeals had arisen, order accordingly. On merits, following the majority point of view, Appeals Nos. 4 and 5 of 1979 are dismissed, and all other appeals are allowed in terms of the formal last part of the judgment of Maulana Muhammad Taqi Usmani, J. If possible a consolidated law of pre-emption be enacted accordingly till 31-7-1986. There shall be no order as to costs." ' The Constitution of Islamic Republic of Pakistan, 1973 "Article 203-A : The provisions of this Chapter shall have effect notwithstanding anything contained in the Constitution." "Article 203-D. (I) The Court may, either of its own motion or on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet, hereinafter referred to as the injunctions of Islam." (2) If the Court decides that any law or provision of law is repugnant to the Injunctions: of Islam, it shall set out in its decision :- (a) the reasons for its holding that opinion ; and (b) the extent to which such law or provision is so repugnant ; and specify the day on which the decision shall take effect ; (3) If any law or provision of law is held by the Court to be repugnant to the Injunctions of Islam,- (a) the President in the case of a law with respect to a matter in the Federal Legislative List or the Concurrent Legislative List, or the Governor in the case of a law with respect to a matter not enumerated in either of those Lists, shall take steps to amend the law so as to bring such law or provision into conformity with the Injunctions of Islam : and (b) such law or provision shall, to the extent to which it is held to be so repugnant, cease to have effect on the day on which the decision of the Court takes effect." ' Article 203-F.-(1) Any party to any proceedings before the Court under Article 203-D aggrieved by the final decision of the Court in such proceedings may, within sixty days of such decision, prefer an appeal to the Supreme Court : ' Provided that an appeal on behalf of the Federation or of a Province may be preferred within six months of such decision." ' Article 203-GG. Subject to Articles 203-D and 203-F, any decision of the Court in the exercise of its jurisdiction under this Chapter shall be binding on a High Court and on all Courts subordinate to a High Court. ' Article 264. Where a law is repealed, or is deemed to have been repealed, by, under, or by virtue of the Constitution, the repeal shall not, except as otherwise provided in the Constitution,- (a) revive anything not in force or existing at the time at which the repeal takes effect ; (b) affect the previous operation of the law or anything duly done or suffered under the law ; (c)affect any right, privilege, obligation or liability acquired, accrued or incurred under the law ; (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the law ; or (e)affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation liability, penalty, forfeiture or punishment ;
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' and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the law had not been repealed. ' West Pakistan General Clauses Act, 1956 ' Section 4(1) : Where this Act or any other West Pakistan Act repeals any enactment then unless a different intention appears, the repeal, shall not :- (a) revive anything not in force or existing at the time at which the repeal takes effect, (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder, or (c)affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed, or (d) . (e). (2) The provisions of subsection (1) shall apply on the expiry or withdrawal of any Ordinance promulgated by the Governor as if it had been repealed by a West Pakistan Act." ' Martial Law Regulation 115 "Para. 25-(3) (d) : Subject to the other provisions of this Regulation, a tenant shall have the first right of pre-emption in respect of the land comprised in tenancy." ' Punjab Pre-emption Act, 1913 "Section 15. Subject to the provisions of section 14, the right of preemption in respect of agricultural land and village immovable property shall vest- (a) Where the sale is by a sole owner or occupancy tenant or, in the case of land or property jointly owned of held, is by all the co-sharers jointly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor or vendors, to inherit the land or property sold ; (b) Where the sale is of a share out of joint land or property, and is not made by all the co-sharers jointly,- ' firstly, in the lineal descendants of the vendor in order of succession ; ' secondly, in me -co-sharers, if any, who are agnates, in order of succession ' thirdly, in the persons, not included under firstly or secondly above, in order of succession, who but for such sale would be entitled, on the death of the vendor, to inherit the land or property sold : ' Provided that in case where the sale is by a Muslim, the firstly and secondly shall be inapplicable, and the thirdly shall read as follov' s :- ' thirdly, in the persons in order of succession, who but for such sale would be entitled, on the death of the vendor to inherit the land or property sold. ' fourthly, in the co-sharers ; ' if no person having a right of pre-emption under clause (a) or clause (b) seeks to exercise it,- ' firstly, when the sale affects the superior or inferior proprietary right and the superior right is sold, in the inferior proprietors, and when the inferior right is sold, in the superior proprietors ' secondly, in the owners of the patti or other sub-division of the estate within the limits of which such land or property is situate ; ' thirdly, in the owners of the estate ; ' fourthly, in the case of a sale of the proprietary right in such land or property, in the tenants (if any) having rights of occupancy in such land or property ; ' fifthly, in any tenant having a right of occupancy in any agricultural land in the estate within the limits of which the land or property is situate. ' Explanation.-In the case of sale by a female of land or property to which she has succeeded on a life tenure through her husband, son, brother, or father the word 'agnates' in this section shall mean
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the agnates of the person through whom she has so succeeded." 5. An examination of the provisions of law and the operative parts of the judgment makes it crystal clear that Shariat Appellate Bench of Honourable Supreme Court has declared that the provisions of para. 25(d) of M. L. R. 115 as well as the provisions of section 15 (except clause (b) fourthly relating to the right of co-sharer) of the Punjab Pre-emption Act, are repugnant to the Injunctions of Islam that the Hon-arable Court had given 31-7-1986 by which date the President in case of M. L. R. 115 and Limitation Act and the Governor of the Punjab in case of Preemption Act, 1913, were required to take steps to amend the law so as to bring such provisions of law in conformity with the Injunctions of Islam ; that no steps apparently have been taken by the President as well as the A Governor to amend the provision of law so as to bring such provision in conformity with the Injunctions of Islam, by the specified day on which the judgment would become effective rendering the aforesaid provisions of law as `Kaladams i,e, void and that as a consequence of the failure on the part of President and the Governor to amend the law as required by Article 203-D(3)(a) of the Constitution, those provisions of law have, ipso facto, become ineffective, inoperative and have ceased to have effect w,e,f, 31-7-1986. It has been laid down in case Pakistan v. Public at Large (1) : "When fixing the date sufficient margin will have to be allowed to the Government and the Legislature concerned to take steps and then to make the law in accordance with the Injunctions of Islam (Article 203-D(3)(a)) ; because if due to paucity of time it is not done, there being no scope for condonation of delay ex post facto, the impugned law shall in any event become ineffective (Article 203-D(3)(b)). The ensuing consequences can be well imagined including those of hardship to the public." The judgment which has taken effect on 31-7-1986 is very much binding not only on this Court, on all Courts subordinate to it but also on all other Courts in Pakistan by virtue of Articles 203-GGB and 189 of the Constitution cannot be questioned in any manner. So, there is no option but to accept consequences ensuing therefrom. This brings me to the most important question for determination i,e,, whether the judgment tantamounts to repealing the provisions of law declared as repugnant. The dictionary meaning of the relevant {{FOOT NOTE}} (1) PLD 1986 SC 240 {{FOOT NOTE}} terms may be quoted with advantage : In Dictionary of Legal Words and Phrases by William C. Cochran,-"Repeal" is to annul, or set aside, a law by a legislatiYe act". In Webster's Dictionary, the meanings of word "Repeal" is, "to recall law, or statute, to revoke, to abrogate by authority". Its noun is "revocation or abrogation". In Concise Law Dictionary by P. G. Oslorn, the meaning of the word "Repeal" is "abrogation of a statute or part of a statute by a subsequent statute". In the same dictionary, the meaning of ;._.e word ex post facto is "by a subsequent act". In Legal Maxims Foreign Words, Terms and Phrases by Ommanuel Zafar, ex post facto is, (From a law made after) ; i,e,, the law is retrospective, being passed only after the thing prohibited was done. Every law that takes or impairs a vested right is retrospective. In 'A M 'dery Guide to Synonyms and Related Words' the word "effect" is that it can refer to the successful accomplishment of an intended action. The meanings of the word "cease" most often suggest an abrupt stopping. It appears to me that the judgment is not "repeal" of those provisions of law declared as repugnant to the Injunctions of Islam within the meaning of section 4 of West Pakistan General Clauses Act, 1956, section 6 of the General Clauses Act, 1897 and Article 264 of the Constitution. The words "Whether this Act or any other West Pakistan Act repeals any enactment" and the word "Whether this Act or any Central Act or Regulation made after the commencement of this Act repeals any enactment made or hereinafter to be made" used in section 4 of the West Pakistan General Clauses Act, 1956 and section 6 of the General Clauses C Act, 1897, respectively,
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are of great significance and tend to show that the right of repeal is inherent in legislation alone, therefore, any change of law otherwise than by legislation will not constitute "repeal" so as to protect any right, previlege, obligation or liability acquired, accrued o incurred under the Punjab Pre-emption Act or previous operation of the provisions of law declared as repugnant to the Injunctions of Islam or anything duly done or suffered thereunder before the crucial date and also the continuation of the suit pending on that date. The Supreme Court in a case reported as PLD 1964 SC 673 has held that when unconstitutional statute is declared by the Court to be void, the Court does not thereby repeal the statute but merely holds it to be ineffective or inoperative. The expression "void Law" does not mean that it was effaced from the statute book. The contention that a law declared as void should entail consequences similar to those of repeal of statute was repelled and it was categorically enunicated that the word "void" as regards law clearly implies that its provisions have become totally unenforceable. In case reported as PLD 1964 Dacca 795, it was held that the expression "repeal", "deemed to have been repealed" and "void" used in different Articles of the Constitution of 1962 cannot be taken to have been intended to convey the same meaning and nor can the consequences that ficw such happening be taken identical and that the Court's function is not to legislate. Had it been the intention of th Framer of Chapter 3 A of the Constitution to repeal/deemed to have been repealed, the law or pr; visions of law declared as repugnant to the Injunctions of Islam by reason of the judgment rihen nothing stood in its way to include the words "repeal" or "cleaned to have been repealed" in Article 203-D(3)(b) and would not have used the words "ceased to have effect on the day on which the decision of the Court takes effect". In case reported as PLD 1958 Lab. 853, it was held that invalidity was not equivalent to repeal of provision. The Court cannot give relief under an invalid law. In case reported as PLD 1959 SC (Pak.) 387 at 446 the meaning of the word "void" was explained as being "not in operation", enforceable" or "in abeyance" and these expressions do not have effect of a repeal or abrogation of any law. The case reported as PLD 1974 Lah. 545 is an authority on all fours with the principle of law involved in the instant case. Some writ petitions were pending in the High Court pertaining to terms and conditions of service when the Service Tribunals Act, 1973 in consonance with the provisions of Article 212 of the Constitution came into force and thereby the said writ petitions abated. It was contended that provisions of Article 264 on the subject of repeal would become applicable enabling the continuation of the said writ petitions in the High Court despite the change in law. The contention was repelled as in Article 264 of the Constitution, there was a clause to the effect that the said article is to…
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